Abstract

 
 
 The Court ofJustice ofthe European Union’s (CJEU, Court) SEGRO judgment is more than just a recent addition to the debate on the so-called rule of law crisis in the European Union. As this case note shows, SEGRO touches on the most fundamental aspects of the European Union and its relation to the Member States. From an economic perspective, the Court in SEGRO’s treatment ofproperty rights and the ability ofeconomic actors to rely on their lawfully concluded contracts forms the undercurrent of economic investment in the Union. From a functional perspective, the case is perhaps indicative of a wider change in the role of the Court with respect to national courts’ margin of discretion. From a normative perspective, SEGRO gives rise to an important discussion on the difference between fundamental rights and economic freedoms in the EU since the entering into force of the Lisbon Treaty in 2009, as well as ‘constitutional homogeneity’ in the EU after Hungary’s legislative reforms. Finally, from an evolutionary perspective, SEGRO marks another iteration in perhaps a wider shift in the trajectory of the Court with respect to questions that menace the integrity of the functioning of the European Union. This case note first examines the background (I) and facts of the case (II). Then it analyses the Opinion of the Advocate General (III) and the findings of the Court (IV). It concludes with a discussion based not only on an analysis of the SEGRO case (V), but also going beyond the case by analysing the most recent jurisprudential developments concerning Hungary and the issue of the (non-respect) of the Rule of Law in the European Union(VI).
 
 
Highlights
TO THE CASEOn the 25th of April 2011, the New Fundamental Law of Hungary was passed, not long after the conservative-national Fidesz party led by Victor Orban won the general election in April 2010.2 These events formed the ‘trigger’ for what some deem the “Hungarian problem”.3 The lead-up to this point, not even a decade ago, is complex, multifaceted and historical in nature
While a full discussion of the text of the New Hungarian Fundamental Law is beyond our scope here, suffice to say that according to some scholars “neither democracy nor the rule of law emerges intact [...].”6 The text makes a distinction between Hungarians living on Hungarian soil or Hungarians living abroad and other nationalities living in Hungary, puts in place the so-called “cardinal laws” via which the government has quickly entrenched new provisions in various sectors, and directs some duties towards the national community rather than towards other individuals.[7]
The European Union has been grasping for a way to intervene in this new political and legal order without risking backlash; some question whether the EU is structurally capable to deal with such a situation.[8]
Summary
On the 25th of April 2011, the New Fundamental Law of Hungary was passed, not long after the conservative-national Fidesz party led by Victor Orban won the general election in April 2010.2 These events formed the ‘trigger’ for what some deem the “Hungarian problem”.3 The lead-up to this point, not even a decade ago, is complex, multifaceted and historical in nature. Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, noting Hungary’s failure to provide evidence establishing that more lenient provisions could not have achieved the same objective.[13] in a judgment rendered in February 2017, again, infringement proceedings brought by the Commission, the Court ruled that by making nationality a condition necessary to access the notarial profession, Hungary had not performed its Article 49 TFEU freedom of establishment obligations.[14] on July 19, 2018, the Commission sent a letter of formal notice to the Court of its decision to refer Hungary to the Court for infringement proceedings relating to Hungary’s non-compliance with asylum law.[15]
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